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Council’s Practice Direction 5 of 2009: Obtaining Evidence of a Solicitor’s Misconduct by Entrapment or by Illegal or Improper Means

1.   This Practice Direction takes effect on 1 December 2009.

2.   This Practice Direction applies to the obtaining of evidence of a solicitor’s misconduct by: (a) entrapment; and (b) illegal or improper means. It adopts, with necessary modifications, the definitions of the two modes of obtaining such evidence by the Court of Appeal in Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR 377 at p 389, para 27, as follows:
2.1.   The term “entrapment” “involves luring or instigating the [solicitor] to commit an offence [or a breach of the rules of professional conduct] which otherwise, or in ordinary circumstances, he would not have committed, in order to prosecute him”. Entrapment “invariably entails unlawful conduct by an agent provocateur, in the form of abetment of the offence by instigation or intentionally aiding the [solicitor] to commit the offence [or a breach of the rules of professional conduct]”. 

2.2.   On the other hand, obtaining evidence illegally or improperly “does not necessarily involve any instigation or inducement on the part of the agent”.

3.   There have been a number of disciplinary cases in the past few years which revealed that one or more solicitors had hired private investigators to obtain evidence of touting by another solicitor in a different law practice suspected of procuring conveyancing work from real estate agents by giving referral fees. A common issue raised in these cases was whether such evidence had been obtained by entrapment or by illegal or improper means. In most of these cases, the Court found that such evidence had not been obtained by entrapment or by illegal or improper means.

4.   However, where a solicitor (the “procurer”) obtains evidence of another solicitor’s misconduct by entrapment or by illegal or improper means, whether directly or indirectly, a number of ethical issues are raised:
4.1.   The procurer “is subject to the same standards of conduct under the disciplinary code and also the law”: Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 at p 264, para 59. If the procurer is also the agent provocateur and is “guilty of wrongdoing, he should also be subject to the ordinary processes of the law, like any other offender or tortfeasor, including disciplinary proceedings”: Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR 377 at p 399, para 52.

4.2.   The procurer’s conduct in instigating or intentionally aiding another solicitor to commit an offence or a breach of the rules of professional conduct is a breach of his obligation to treat his colleagues with courtesy and fairness under r 47 of the Legal Profession (Professional Conduct) Rules. The procurer’s conduct is as objectionable as the ensuing breach committed by that solicitor.

4.3.   The procurer’s conduct also derogates from the dignity of the legal profession and adversely affects the standing and perception of the legal profession in the eyes of the public. If a solicitor becomes aware that another solicitor has committed an offence or a breach of the rules of professional conduct, he should lodge a complaint with the Law Society in accordance with established procedures, instead of resorting to entrapment or illegal or improper means to obtain evidence about the other solicitor’s misconduct.

4.4.   The Council also understands that a solicitor’s act of obtaining evidence of another solicitor’s misconduct by entrapment is viewed as deceptive conduct in two other foreign jurisdictions.

5.   In view of the above, the Council takes the position that it is improper for a solicitor to obtain evidence of another solicitor’s misconduct by entrapment or by illegal or improper means, whether directly or indirectly, when he becomes aware that the other solicitor has committed an offence or a breach of the rules of professional conduct. The procurer may therefore be liable to disciplinary action under s 83 of the Legal Profession Act.

6.   The Council’s position in para 5 above should not be taken in any way to excuse the conduct of a solicitor who has committed an offence or a breach of the rules of professional conduct. The errant solicitor will be equally liable to disciplinary action under s 83 of the Legal Profession Act, independent of any wrongful conduct by the procurer. The High Court observed in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 at p 264, para 59:

… the law governing entrapment evidence (whether private or state-sponsored entrapment) in criminal proceedings has no application to disciplinary proceedings. The Court of Appeal in Rayney Wong CA also reached the same conclusion on the ground that primacy must be given to the legal profession’s ethical and professional code of conduct over any illegal or improper conduct of a member of that profession in procuring evidence to uphold the values of that code. The appropriate remedy in such cases is neither to exclude the evidence nor to stay the proceedings. 

7.   As officers of the court, all solicitors must maintain the highest ethical standards in their professional practice and conduct and uphold the values of the legal profession.

Date: 1 December 2009

The Council of the Law Society of Singapore